JUDGMENT Sen, J.
1. This is an appeal by one of the defendants, arising out of a suit for declaration that Abdul Wahid was the owner of the property in dispute, that the said property was liable to be sold in execution of decree No. 152 of 1922 obtained by the plaintiff against Abdul Wahid and that the decree in suit No. 326 of 1911 obtained by Abdul Ahad against his son Abdul Wahid was fictitious, collusive and not binding upon the son.
2. The relation of some of the parties will appear from the following genealogical table:
Moizuddin Munni Begam | | | | | Abdus Samad Abdul Tafwizannisa Tahmidannisa | Ahad =Ghafur =Rafat | | Ahmad Ahmad Daughter | | Abdul Wahid | | | Abdul Fatma Wahid. Begam
3. Munni Begam had a son Abdul Ahad and two daughters Tafwizannisa and Tahmidan Nisa. Abdul Ahad was married to Mt. Fatma Begam. Abdul Wahid is the son of Abdul Ahad by another wife. On 12th June 1890, an award was made on a reference to arbitration between Munni Begam and some of her relations. Under this award, a moiety of the property was given to Mt. Fatma Begam and Abdal Wahid jointly and the other half to Abdus Samad, who was another son of Munni Begam. On 30th May 1901, Abdul Wahid executed a simple mortgage of the property in suit to Chhabi Ram plaintiff-respondent. In 1905 Tafwizannissa and Tahmidunnissa the two daughters of Munni Begam instituted a suit for the avoidance of the award. The suit was decreed and their claim to a portion of the property was recognized by a decree dated 10th May 1905. On 14th July 1908, a second award was made between the members of the family under which one-sixth share of Tahmidunnissa in mauzas Rali Madhopur and Ismailpur was given to Abdul Wahid and others and the share of Tahmidannissa in mauza Gangapur was increased in exchange of the above aforesaid property. On 22nd November 1910, Tafwizunnissa sold her share in mauzas Rali Madhopur and Gangapur to Abdul Wahid and others. On 16th October 1911, Abdul Wahid executed another mortgage in favour of Chhabi Ram and the consideration for this mortgage was the earlier mortgage, dated 30th May 1901,.which has already been referred to. In 1911, a suit was launched by Abdul Ahad the father against Abdul Wahid for a declaration that the property mortgaged to Chhabi Ram was his property and did not belong to Abdul Wahid. This suit was numbered and registered as 326 of 1911. On 15th December 1911 Chhabi Ram sought to be impleaded as a defendant. This application was resisted by Abdul Ahad and was rejected by an order dated 16th December 1911. Chhabi Ram instituted a suit on foot of his mortgage dated 16th October 1911, against Abdul Ahad and Abdul Wahid the m mortgagor. The suit was decreed against Abdul Wahid but was dismissed against Abdul Ahad the father. This was on 6th December 1922. A final decree was obtained by Chhabi Ram which he sought to execute by sale of the mortgaged property. Abdul Ahad intervened. Curiously enough, the Court below did not try the question raised by Abdul Ahad's application in the course of the execution proceedings, it, however, ordered that the application of Abdul Ahad be treated as a suit. The present suit was instituted by Chhabi Ram on 13th October 1925, in which he sought the reliefs which we have already enumerated, upon the ground that Abdul Wahid was the owner of the property in controversy, that he was competent to mortgage the property to Chhabi Ram on 16th October 1911, that the decree dated 6th December 1922, was properly obtained against Abdul Wahid and was executable by sale of the mortgaged property, that Abdul Ahad had no interest in the property whatsoever, and that the plaintiff was not bound toy the decree obtained by Abdul Ahad, the father against his son Abdul Wahid which was a fraudulent and collusive decree.
4. Abdul Ahad contested the suit on the ground that he was the owner of the property, that the decree obtained by him against his son Abdul Wahid in suit No, 326 of 1911 was not vitiated by fraud or collusion and that the plaintiffs claim was time barred.
5. It may be mentioned that the plaintiff in repudiating the claim of Abdul Ahad relied upon Section 41, T.P. Act, as being the transferee of the property from the ostensible owner.
6. The Court of first instance dismissed the suit. It overruled the plea of estoppel, upheld the plea of limitation and held that Abdul Ahad the father and not Abdul Wahid was the owner of the property in dispute.
7. The lower appellate Court has reversed this decision and decreed the plaintiff's suit. It came to the conclusion that the plaintiff's claim was not barred by limitation. It manifestly intended to find that Abdul Ahad was precluded by Section 41, T.P. Act, from impugning the title of his son Abdul Wahid. There was no trial of the issue as to whether Abdul Wahid or Abdul Ahad was the owner of the property in dispute. Abdul Ahad appeals from this decision and his main contention is that the plaintiff's claim was time barred. It has been argued that the decree in suit No. 326 of 1911, was obtained in July 1912. Assuming that this decree was collusive or fraudulent, Chhabi Ram the plaintiff had knowledge of this fraud so far back as 15th December 1911, when he intervened in the said suit. His application, however, was rejected on 16th December 1911. The present suit was not instituted till 13th October 1925. It has been strenuously argued that the suit is covered by-Art. 95, Lira. Act, and the claim for the avoidance of the decree in Suit No. 326 of 1911 is statute barred.
8. Our attention has been drawn to the decisions in Radha Prasad Singh v. Bhagwan Rai [1883] 5 All. 289 and Parekh Ranchor v. Rai Vakhat [1887] 11 Bom. 117. The facts of these cases are in our opinion toto caelo different from the facts which have given rise to the present appeal. This is not a suit for the avoidance of a decree, nor it is a suit for setting aside a decree obtained by fraud within the' meaning of Article 95. The claim is for declaration that the plaintiff is not bound by the decree in suit No. 326 of 1911. There can be no doubt that the article applicable to a suit for declaration of this description is Article 120 and not Article 95. The plaintiff was entitled to institute a suit of this description within six years from the date of the invasion of his title Prior to 6th December 1922, when he obtained the decree against Abdul Wahid mortgagor, he had no right to proofed against the property in dispute. His title to the property was jeopardized for the first time when Abdul Ahad the father intervened in the course of the execution proceedings and claimed to be the absolute owner of the property. This was done sometime on or about 2nd October 1925. The suit was instituted on 13th October 1925, and is clearly within time.
9. The plea of estoppel was argued in the Court below, but there is no clear finding on this point. The learned District Judge hold that the plaintiff had made sufficient inquiry and left the matter there. As we have already noticed there is no finding on the question of title of either the mortgagor or of Abdul Ahad to the property in dispute, we are of opinion that this appeal cannot be satisfactorily disposed of without having a clear finding on this point. We remit the following issues to the lower appellate Court:
1. Whether Abdul Ahad or Abdul Wahid was the owner of the property in dispute?
2. Whether Abdul Ahad was precluded by Section 41 T P. Act, from asserting his title to the property mortgaged to Chhabi Ram plaintiff?
10. The Court below is directed to subrait its findings on these issues within two months from the date of receipt of this order. The parties are permitted to adduce further evidence if they are so advised. On return of the findings the usual ten days' time shall be allowed for objections to the findings,